Sunday, August 11, 2013

Who Would Have Thought, Comrades, That The Most Severe Form of Attempted Internet Censorship Could Originate in a Community Hospital, Abington Memorial, That Alleges Itself A Non-Profit Public Servant?

I would not have thought such an attempt at abridgement of fundamental American rights could originate in a local hospital, until this Motion by the defense in the EHR-related lawsuit initiated by my deceased mother in which I am now substitute plaintiff proved otherwise.

The hospital and their defense team were upset I was exposing, via this blog, their discredited and unethical attempts to prevent plaintiff in Silverstein v. AMH (now me, as substitute plaintiff after my mother's death) from prosecuting our medical malpractice case.  They attempted to have the case dismissed via a relentless procedural attack on proper Certificates of Merit filed by my attorney at the outset of litigation, in accordance with Pennsylvania law. 

They - the same lawyer and the same hospital - had attempted this before in an earlier case.  In fact, the attempt had been thrown out in 2008 by the judge in US District Court for the Eastern District of Pennsylvania, in the case Stroud v. AMH.  The hospital and defense apparently didn't care, and apparently didn't think they owed the Montgomery County Court the legally-required Candor Before the Tribunal (required by the American and PA Bar Associations, and by Pennsylvania at 204 Pa. Code Rule 3.3, in informing the court of that prior adverse ruling, prior to trying it again in 2010.

They moved to silence me:


The hospital was attempting to have the Court issue a Motion for Prior Restraint (, including against my writings here in the Healthcare Renewal blog, in a civil matter.

In my view this attempt sets a very deleterious precedent for others opposed to hospital practices.  A topic frequently discussed at this blog is imperial management.  Hospital management seems to have now become so arrogant that it apparently believes itself to have supra-Constitutional reach.  This bodes poorly for both patients' and clinicians' rights. How many other hospitals might try this, and not just against parties to litigation, hoping to get a favorable ruling?

Prior restraint (also referred to as prior censorship or pre-publication censorship) is censorship imposed, usually by a government, on expression before the expression actually takes place.

Prior restraint is often considered a particularly oppressive form of censorship in Anglo-American jurisprudence because it prevents the restricted material from being heard or distributed at all.  Prior restraint ... takes an idea or material completely out of the marketplace. Thus it is often considered to be the most extreme form of censorship.

... most of the early struggles for freedom of the press were against forms of prior restraint. Thus prior restraint came to be looked upon with a particular horror, and Anglo-American courts became particularly unwilling to approve it, when they might approve other forms of press restriction.

Excerpts of plaintiff attorney's legal response are below (full PDF of this civil document is available at 

The response was, in fact, largely right out of the U.S. Constitution.   It is stunning that a community hospital, allegedly a servant of the public, would pull the legal stunts described which seem more akin to the methods of the former Soviet Union:

... as the entirety of the blog describes, Dr. Silverstein was troubled with, and expressed his opinion that, the defendant’s counsel’s repeatedly advancing an argument [that the same attorney had made three years prior regarding a medical malpractice case in the very same hospital - ed.] that was soundly rejected by another court [related to Certificates of Merit that delayed proceedings in my mother's case for almost two years - ed.], and the defendant’s failure to reference that case in any substantive way as opposing authority, was, in his protected opinion, malicious and unethical. As above, Dr. Silverstein’s comments on the matter are, as defendant agrees, his beliefs, opinions and viewpoints, all of which are protected speech under the Pennsylvania and United States Constitutions; that defendant’s counsel is dissatisfied with protected speech is not a matter for this court to address.

I would expect the defendant's counsel was following the instructions of, or at least was in collaboration with, hospital counsel, hospital senior management and the healthcare system Board of Directors.

... Unhappy that their improper tactics are now being exposed through Dr. Silverstein’s opinions in his blog, defense counsel initially threatened litigation. Now they ask this court to enjoin Dr. Silverstein, via prior restraint, from expressing his views. This extraordinary request comes in spite of the defendant offering nothing but pure speculation as the foundation upon which they ask this Court to strip the plaintiff of his First Amendment rights.

... Their request to strip plaintiff of his First Amendment rights is at odds with the Constitution, the caselaw, and the realities of the jury selection process, which has multiple safeguards in place to remove anyone who may have read and been influenced by Dr. Silverstein’s writings. Importantly, because of the defendant’s procedural tactics, this case, while over two years old, has only just begun discovery and the jury section process is nowhere in the near future.

... The simple fact is that Dr. Silverstein’s blog contains what defendant recognizes are his “beliefs, opinions and viewpoints” and, as such, they are protected. Neither defendant nor its counsel can meet the strict requirements of their unprecedented request to strip Dr. Silverstein of his constitutional rights. Their Motion must be swiftly denied.

Dated: 28 May 2013

The court, a civil Court of Common Pleas in this county in Pennsylvania, in fact did promptly make a decision: hospital motion for censorship denied.

6/24/2013OrderOF 6/20/13 DANIELE,J MOTION IS DENIED; CCNo9343590

The First Amendment lives, at least in Montgomery County, Pennsylvania.

However,  as the stories aggregated on this blog and others increasingly show, hospitals' mission of public service increasingly seems to be dying.

Attempted use of courts to abridge First Amendment rights by a hospital seems like the pinnacle of abandonment of pretenses of public service and accountability.  Corporate interests come first, not patients. 

This is a reason I increasingly am of the belief that hospital management cannot be trusted.  Accordingly, in my opinion, patients - especially acute inpatients - should have 24x7, independent advocates following every aspect of their care, receiving a daily full printout of any electronic records generated, and (if legal) even using one of the many new, small video/audio recording devices in encounters with hospital personnel.

"He said/she said" is no longer an option when dealing with a Сою́з Сове́тских Социалисти́ческих Респу́блик mentality.

Click for Patriotic music!

Perhaps Abington Memorial Hospital should consider adopting the rousing music above for their HR morale-building exercises.

I was a Medical Resident there in 1985-87.  Like Lev Davidovich Bronshtein, I guess I've been excommunicated for failure of obedience to the Party line.

My old residency ID.  I've now been excommuncated.

Da Svedanya for now, Comrades!

-- SS


The hospital and defense team tried the Certificate of Merit attack tactic once more in 2014, this time in Philadelphia court (despite it having failed in Montgomery County court, again failing to exhibit Candor Before the Tribunal), and once more it was thrown out:

Thach v. Abington Memorial Hospital, PICS Case No. 14-1506 (C.P. Philadelphia Sept. 9, 2014) Massiah-Jackson, J. (23 pages).
The Legal Intelligencer
September 30, 2014

Certificates of Merit • Medical Malpractice • Modification of Rules of Civil Procedure

Thach v. Abington Memorial Hospital, PICS Case No. 14-1506 (C.P. Philadelphia Sept. 9, 2014) Massiah-Jackson, J. (23 pages).

In this medical malpractice action, plaintiff's single certificate of merit was sufficient under Rules 1042.3(a) and 1042.10, and defendant had chosen the wrong forum in which to seek changes to those rules. Defendant's motion to certify for appellate review was denied.

Plaintiff Lyah H. Thach, then 33 years old and 28 weeks pregnant, was admitted to Abington Memorial Hospital where she underwent testing, diagnostic imaging and various treatments. She was diagnosed with strep viridans infective endocarditis with embolic events and CVA secondary to a history of rheumatoid fever, positive mitral valve thickening and pregnancy. After her discharge, the hospital provided weekly home healthcare visits for a month. One day after her discharge from home healthcare, Thach returned to the hospital where she suffered at least two strokes and permanent and irreversible brain damage.

In the resulting medical malpractice action, Thach alleged that the hospital, the sole defendant, was vicariously liable for the actions of several named and unnamed medical professionals. She submitted one affidavit of merit. Defendant moved to strike, arguing that since its alleged liability was based on the negligence of others, separate COMs should have been filed regarding those individuals. Its motion was denied.

Defendant then filed a motion seeking appellate certification of the denial, contending that the order involved a controlling question of law as to which there was substantial ground for difference of opinion and that an immediate appeal could materially advance the ultimate termination of the matter.  The court denied defendant's motion. It noted that the form for a COM was set forth in Rule 1042.10 and that the rule was clear and unambiguous. It said that if defendant wanted to propose new forms or new wording or other amendments, the proper forum was the Supreme Court of Pennsylvania's Civil Procedural Rules Committee, not the trial court. 

Noting that defendant had set forth in its memorandum proposed language for a COM that did not appear in the rules and had not been endorsed by the supreme court, the court said that the hospital's bald suggestions were not a proper legal basis to support its motion to strike.

The court also held that it could not usurp the policy concerns addressed by the Supreme Court when the COM rule was adopted. It rejected defendant's argument that because in other cases, plaintiffs had filed multiple COMs, it was bound by that "precedent," saying that Rule 1042.10 required that plaintiff submit a COM as to "the defendant against whom the claim had been asserted."

The court said that defendant was faced with Rules 1042.3(a)(2) and 1042.10, which were clear and free from all ambiguity. It also said the hospital's attempts to add impediments to the litigation only days after its commencement and prior to normal pre-trial discovery appeared to be a pretext designed to delay case management protocols. 

The court concluded that only the Supreme Court of Pennsylvania could modify the Rules of Civil Procedure or the policy relating to COMs and that defendant had failed to articulate how an immediate appeal would materially advance the ultimate termination of the case. It therefore denied defendant's motion for appellate certification.

 -- SS


Anonymous said...

I wonder what they would do to you if you worked there as a staff physician. Sham peer review, anyone?

I pity the doctors and nurses who must continue to use flawed and defective EHR systems. Hope they are able to come up with enough work-arounds to keep their patients safe.

Ah yes, and they use charitable funds to pay for their legal nonsense. A complaint of fiduciary irresponsibility with the Pa AG should be considered.

Anonymous said...

First, I am very sorry for your loss of your mother.

Second, I am thoroughly disgusted by this hospital's actions (Prior restraint? Are you kidding me???), and I sincerely hope the courts find in your favor when all is said and done.

I am the HIPAA officer where I work (not a hospital), and the primary caregiver for my mother, who is scheduled for surgery in a couple of weeks. I follow your blog for professional reasons, but have also found it very helpful personally. Thank you. Don't stop posting.

Megan W. said...

Absolutely Phenomenal to see a physician out there refusing to accept what what has been put upon him by those who believe "law/rules are for everyone else, not us". I have been a Registered Nurse now for over 25 years. I have watched patient centered care disappear. These administrators are some of the most despicable, arrogant, greedy, pompous people that I have ever met. They walk the halls touting "we care"; their commercials, billboards, radio shows ,etc. They care only about shareholders and that's it. A wise CFO hiring me for a position one said, "it's all about money". At least it was honest.
I applaud you for speaking about this horrible mess we call healthcare. There are answers and ideas that are out there and their sound, wise and patient centered. We will never get anywhere it governed by those only concerned about their own pocketbooks. It's disgusting. Keep on writing Doc. We are listening!! Thank you for your honesty.